German v. Bennington & R. Ry. Co.

• Citation: 42 A. 972,71 Vt. 70
• Court: United States State Supreme Court of Vermont
• Decision Date: 26 January 1899
• Parties: GERMAN v. BENNINGTON & R. RY. CO.

42 A. 972

71 Vt. 70

GERMAN

v. BENNINGTON & R. RY. CO.

Supreme Court of Vermont. Rutland.

Jan. 26, 1899.

Exceptions from Rutland county court; Start, Judge.

Action by Peter German, administrator, against the Bennington & Rutland Railway Company. Judgment for plaintiff, and defendant brings exceptions. Affirmed.

Butler & Moloney, for plaintiff.

Barber & Darling, J. K. Batchelder, and Geo. E. Lawrence, for defendant.

ROWELL, J. This is case for negligence in running over and killing plaintiff's child, 21 months old.

By pleading the general issue and going to trial thereon after the demurrer to the declaration was overruled, instead of standing on the demurrer and submitting to a judgment of quod recuperet, the demurrer was waived. This court has repeatedly so held. Rea v. Harrington, 58 Vt. 181, 2 Ail. 475; Houston v. Brush, 66 Vt. 331, 29 Atl. 380. And this is the rule everywhere, unless otherwise by statute. 6 Enc. Pl. & Prac. 363. "Who ever heard," says Chief Justice Nelson in Jones v. Thompson, 6 Hill, 621, "of an issue of law upon the record in this court after the party demurring has had leave to amend, and has availed himself of the privilege by joining an issue of fact?" What is there called an "amendment" was simply pleading the general issue after a demurrer to the declaration was overruled. In Campbell v. Wilcox, 10 Wall. 421, the defendants demurred generally to the declaration. The demurrer was overruled, and they pleaded to the merits, and the case was submitted to the court without intervention of a jury. The court said that pleading to the merits after the demurrer was overruled operated as a waiver of the demurrer; that the demurrer was thereby abandoned, and ceased thenceforth to be a part of the record.

The fact that the exceptions were ordered to lie makes no difference, as suggested in argument that it does; for, although it is quite the practice to order exceptions on interlocutory questions to lie, yet the order has no force nor significance, for they must necessarily lie until they are disposed of in some way, unless the court, in its discretion, passes the case upon them before final judgment.

When a demurrer is overruled in a civil case at law, and the court does not enforce judgment thereon under the rule, nor pass the case up before final judgment, the demurrant must elect whether he will abide by his demurrer, and let judgment pass against him, and then go up, or whether he will plead over, and thereby waive it. Whether, by leave of court, any other course is open to him, we have no occasion to inquire.

We have treated this subject somewhat at large, for the purpose of calling the attention of the bar more fully to the rule, that the practice may be more in accordance with it.

As the exceptions do not show the ground of the defendant's motion for a verdict, the question cannot be considered. We presume, however, that the same question is raised by the motion to set aside the verdict for want of evidence tending to show negligence on the part; of the defendant, and for...